The Superfund Petroleum Exclusion – Alive and Well in the Ninth Circuit

The Superfund Petroleum Exclusion – Alive and Well in the Ninth Circuit

Posted on April 19, 2018

Spencer Fane LLPJohn Watson

April 10, 2018

In an unpublished opinion on March 21, 2018, the Ninth Circuit Court of Appeals affirmed the trial court’s dismissal of a lawsuit citing the application of CERCLA’s petroleum exclusion. The Court held that the site investigation at a former gas station did NOT identify anything other than petroleum or fractions thereof. Consequently, the Plaintiff did not plausibly allege any CERCLA “hazardous substances” were present at the site. The case was dismissed.

The court’s analysis was succinct:

[A] plaintiff bringing suit under CERCLA must plausibly allege, inter alia, that the relevant contaminant is a “hazardous substance” as defined in § 9601(14). That section of CERCLA contains a so-called “petroleum exception,” under which “petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance” is not a hazardous substance for which plaintiffs can recover. Id. “If a specifically listed hazardous substance is indigenous to petroleum and is present as a result of the release of petroleum, such substance will fall within the petroleum exclusion unless it is present at a concentration level that exceeds the concentration level that naturally occurs in the petroleum product.” Cose v. Getty Oil Co., 4 F.3d 700, 704 (9th Cir. 1993). . . .

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Watson and may not reflect the opinions of Synergy Environmental, Inc., Spencer Fane LLP or either of those firms’ clients.